Opinion
No. 20061074-CA.
Filed March 27, 2008. Not For Official Publication
Appeal from the Second District, Ogden Department, 051905160 The Honorable W. Brent West.
Randall W. Richards, Ogden, for Appellant.
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee.
Before Judges Thorne, Bench, and Davis.
MEMORANDUM DECISION
Defendant Vincent Keith Calhoun appeals his conviction and sentence on two counts of aggravated kidnapping and one count each of aggravated assault, failure to respond at command of police, simple assault, violation of a protective order, and interfering with legal arrest. We affirm.
Calhoun first argues that there was insufficient evidence to convict him of aggravated kidnapping. Specifically, Calhoun challenges the sufficiency of the evidence to support any of the possible aggravating factors, i.e., (1) that he possessed, used, or threatened to use a dangerous weapon, see Utah Code Ann. § 76-5-302(1)(a) (Supp. 2007); (2) that he acted with the intent to hold the victim as a shield or hostage,see id. § 76-5-302(1)(b)(i); or (3) that he acted with the intent to inflict bodily injury, see id. § 76-5-302(1)(b)(iv). Our review under such an argument is narrow, as Calhoun acknowledges. We reverse a conviction based on this ground only when the evidence, viewed in the light most favorable to the guilty verdict, "is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime."State v. Goddard, 871 P.2d 540, 543 (Utah 1994) (internal quotation marks omitted). We do not view the evidence presented to the jury here as inconclusive or inherently improbable.
Regarding the first charge of aggravated kidnapping, arising from the September 2005 incident, the prosecution focused on the "bodily injury" aggravating factor, see Utah Code Ann. § 76-5-302(1)(b)(iv). The evidence before the jury included testimony from the victim that Calhoun had dragged her from the house to the truck by her hair, pulling out "tons" of her hair and leaving a lump on her head. The prosecution also provided photographic evidence of bruises on the victim's arm where Calhoun had grabbed her and tried to get her into the truck. Finally, Calhoun conceded that he bit the victim, and further photographic evidence showed the bite mark. Such evidence is sufficient to support the jury's verdict.
Calhoun argues that all the photographic evidence can be interpreted a different way, that the victim bit him first, and that other evidence in the record supports a not-guilty verdict. But "the existence of contradictory evidence or of conflicting evidence does not warrant disturbing the jury's verdict." State v. Howell, 649 P.2d 91, 97 (Utah 1982) (citing State v. Roberts, 91 Utah 117, 63 P.2d 584 (1937)). Likewise, Calhoun fails in his argument that the evidence was not sufficient simply because there was no testimony by the victim that she was in pain or that she was grabbed on the arm. Our review requires us to view the evidence in the light most favorable to the jury's verdict, and the simple allegation that more-inculpatory evidence was not presented does not persuade us that the evidence that was presented was legally insufficient to support the verdict.
We are aware that several of Calhoun's assertions as to what the victim's testimony did or did not contain are, at best, misleading. Further, there was no real attempt by Calhoun to marshal the evidence supporting the existence of aggravating factors, as is required on a challenge to the sufficiency of the evidence, see State v. Hopkins, 1999 UT 98, ¶ 14, 989 P.2d 1065. We do not address these issues in our analysis because Calhoun's arguments fail notwithstanding these flaws.
As to the second aggravated kidnapping charge, arising from the January 2006 incident, the prosecution relied on the "use as a shield" aggravating factor, see Utah Code Ann.
§ 76-5-302(1)(b)(i). Again, there is ample evidence to support the jury's verdict. Two officers testified that it appeared that Calhoun was using the victim as a shield, including testimony that as the first officer approached the couple, Calhoun instantly moved to hold the victim in front of him and challenged the officer to shoot the victim. Calhoun asserts that the evidence is insufficient because the victim testified that she did not feel scared or threatened during the incident. But this is, at most, contradictory evidence and does not alone warrant reversal. See Howell, 649 P.2d at 97.
Calhoun next argues that the second aggravated kidnapping charge should have merged with the simple assault charge. This argument is raised under both plain error and ineffective assistance of counsel theories. This whole argument is based on Calhoun's reasoning that the jury must have found him guilty of the second aggravated kidnapping under the bodily injury prong based on his holding the victim too tightly as he was trying to get her back into the house. Thus, Calhoun argues, the charge should have merged with the simple assault charge. As mentioned, the prosecution relied on the "use as a shield" aggravating factor for the second aggravated kidnapping. The jury instruction reflected this, not even listing the "bodily injury" aggravating factor. Thus, the aggravated kidnapping was the detention of the victim against her will while using her as a shield.
The merger doctrine is simply inapplicable to the facts of this case. Merger is appropriate when detaining a person against his or her will is inherent in or incidental to another crime. See State v. Finlayson, 2000 UT 10, ¶ 23, 994 P.2d 1243 (requiring that for a kidnapping charge to stand separate from another crime, the confinement supporting the kidnapping charge "(a) Must not be slight, inconsequential and merely incidental to the other crime; (b) Must not be of the kind inherent in the nature of the other crime; and (c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection"). The classic example of such a situation is a rape charge, where a victim is necessarily held against his or her will for the commission of the crime. The crime of simple assault does not have this same characteristic because the commission of assault does not necessarily include a detention or confinement. Moreover, merger is inappropriate here because the facts establishing the kidnapping of the victim and the use of her as a shield were "separate and independent" from those facts establishing the assault. See id. ¶ 19. Therefore, the merger doctrine is inapplicable here and Calhoun's related claims of plain error and ineffective assistance of counsel fail. See State v. Malmrose, 649 P.2d 56, 59 (Utah 1982) ("Effective representation does not require counsel to object when doing so would be futile.").
Finally, Calhoun argues that his counsel rendered ineffective assistance by failing to file a motion to sever the second kidnapping charge from the first kidnapping charge, to sever the violation of a protective order charge from the kidnapping charges, and to bifurcate the protective order violation charge and the prior domestic violence conviction that enhanced it. The question of whether severance of charges is required is governed by Utah Code section 77-8a-1, which provides:
Although our analysis generally references severance, the analysis is equally applicable to Calhoun's bifurcation argument because the latter is also based on the concern that the fact finder will inappropriately convict based on bad character if evidence of other crimes is allowed, see State v. Reed, 2000 UT 68, ¶ 23, 8 P.3d 1025.
If the court finds a defendant or the prosecution is prejudiced by a joinder of offenses or defendants in an indictment or information or by a joinder for trial together, the court shall order an election of separate trials of separate counts, grant a severance of defendants, or provide other relief as justice requires.
Utah Code Ann. § 77-8a-1(4)(a) (2003). "The initial inquiry regarding whether a defendant is prejudiced by joinder is `whether evidence of the other crime would have been admissible in a separate trial.'" State v. Mead, 2001 UT 58, ¶ 59, 27 P.3d 1115 (quoting State v. Smith, 927 P.2d 649, 654 (Utah Ct.App. 1996)). Such evidence of other crimes "is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . ." Utah R. Evid. 404(b).
Calhoun acknowledges that evidence of other crimes is sometimes admissible, and then makes the conclusory statement that no noncharacter purposes for admission exist here. This is inadequate to meet Calhoun's heavy burden on an ineffective assistance of counsel claim. See State v. Santana-Ruiz, 2007 UT 59, ¶ 19, 167 P.3d 1038 ("To prevail on a claim for ineffective assistance of counsel, the defendant has the burden of proving (1) `that counsel's performance was deficient' and (2) that `the deficient performance prejudiced the defense.'" (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984))); see also State v. Tyler, 850 P.2d 1250, 1259 (Utah 1993) ("[A] defendant claiming ineffective assistance of counsel has the difficult burden of showing actual unreasonable representation and actual prejudice."). Without specifically demonstrating that the evidence of other crimes would not have been otherwise admissible — for example, for purposes of showing motive, intent, plan, or lack of mistake — Calhoun cannot establish that his counsel should have filed motions to sever and bifurcate and, thus, cannot show that his counsel rendered deficient performance. See Malmrose, 649 P.2d at 58. Therefore, we see no merit to this ineffective assistance claim.
Affirmed.
WE CONCUR:
William A. Thorne Jr., Associate Presiding Judge
Russell W. Bench, Judge